District Court New South Wales Medium Neutral Citation: R v O'Toole [2013] NSWDC 181 Hearing dates: 21 June 2013 Decision date: 21 June 2013 Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 18 months and a head sentence of 3 years. Catchwords: CRIMINAL LAW - Sentence - Agent corruptly receive benefit - Horse racing steward - Corruption in sport - Principle of parity - General deterrence. Category: Sentence Parties: The Crown Paul Anthony O'Toole Representation: Ms S Harris (Crown) Mr W Barber (Defence) Director of Public Prosecutions (Crown) Colin Biggers & Paisley Lawyers (Defence) File Number(s): 2011/377404 Judgment 1HIS HONOUR: Corruption in sport is an ongoing problem and noted recent examples have included cricket, rugby league and horse racing in its various forms. 2I have before me an offender, Paul Anthony O'Toole, who, through his corrupt conduct, has tarnished the reputation of a particular form of horse racing, harness racing in New South Wales. He was a steward who took bribes. He did this on 30 occasions and on a further four occasions agreed to receive a bribe that was not actually paid. His offending extended over a period of 18 months and, whilst it was for the fairly modest sum of about $6,500 in total, it was intended by Mr O'Toole that his regular bribes would supplement his income and he would have financially benefited as a result. 3Mr O'Toole got involved with a scheme with a number of trainers and another steward whereby the stewards would agree not to test certain horses, knowing that those horses had been administered performance enhancing substances. The idea was that the trainers could administer such substances to their horses. That would increase the likelihood that the horses would win a race. That would increase the trainer's income through simply receiving prize money or through making it more likely that the trainer would win a bet. To cover up that misconduct, the stewards, including Mr O'Toole, would be bribed to ensure that the relevant horses were not subject to post race testing. 4The first offence occurred on 21 January 2010. I will describe what happened on that occasion because it is very similar to what happened on the other occasions that the offender committed similar offences. He was working as a steward at a race meeting at Penrith. Michael Russo, a trainer who I sentenced recently, asked Mr O'Toole that his horse, Alpine Al, not be tested. The horse won its race. Mr Russo paid some money to Mr O'Toole in order to ensure that Alpine Al was not tested. The actual sum that Mr O'Toole received is not known, but he gave between $200 and $400 to another corrupt steward, Matthew Bentley. This, as I say, was on 21 January 2010. 5Throughout 2010 and through half of 2011, similar activities occurred. Mr O'Toole, whether he was a steward or a starter at a race meeting, was involved in a scheme whereby trainers would pay money to ensure that particular horses were not drug tested so that the fact that the horses had been doped could be covered up. 6He now stands to be sentenced for nine offences of being an agent and corruptly receiving a benefit, offences which the maximum penalty is imprisonment for seven years. He asks that when I sentence him for the first of those matters, the one I have just described, I take into account a further 25 matters on a Form 1, 21 similar offences and four of corruptly agreeing to receive a benefit, although the benefit was not paid in those cases because the horse did not actually win, thus no money was paid. 7The criminality of these offences is obvious and the harm that his conduct has caused is also obvious. These offences represented a grave breach of trust, a matter which of course is common to all bribery offences, such as these. The Court of Criminal Appeal in dealing with an example of corruption in the greyhound racing industry has reminded us as to just how serious corruption of people involved in the racing industry, including of stewards, really is. 8The offender pleaded guilty to his offences at the earliest opportunity and so the sentence I will ultimately impose upon him is 25% less than it would otherwise have been. 9The offender is a man of prior good character. He has no other criminal offences on his history and references tendered to the Court speak highly of his general integrity. Of course it was his prior good character which put him in a position which enabled him to commit these offences and any suggestion, as is made in many of the references, that his conduct was out of character has to be considered in light of the fact that his out of character behaviour went on for 18 months and involved 34 separate acts of bribery. 10The offender was born in 1963. He is almost 50 years of age and he lives with his wife and their three children. There was nothing really remarkable about his upbringing apart from one particular aspect of it that I want to speak briefly about. I want to speak briefly about it not because I do not consider it important, but because of the intensely personal nature of it. His experiences at school as the victim of criminal behaviour have had a lasting and significant impact upon him. He is deserving of significant sympathy because of that. As judges understand when they sentence for crimes similar to those of which Mr O'Toole was a victim, the impact of such crimes is ongoing and at times devastating. The material tendered today is an eloquent demonstration of the seriousness with which judges treat conduct of that kind, but of course being the victim of a crime of that kind does not give anyone a licence to themselves commit crimes. I have taken into account, Mr O'Toole's terrible experiences at school but of course that cannot lead to a situation where I impose a sentence upon him which fails to reflect the objective gravity of his most serious criminal behaviour. 11These offences were committed by Mr O'Toole at a time when he was under additional financial and emotional stress for reasons which have also been outlined in the evidence. He and his family have suffered greatly since his misconduct has become known. Not surprisingly, there has been a great deal of publicity given to Mr O'Toole's misconduct and this has caused distress both for him and his family. The pressure that his family is under as they wait for today's sentencing proceedings has led to obvious and completely understandable consequences for the rest of his family. They too have suffered because of Mr O'Toole's criminal behaviour. That hardship however is not exceptional, nor is the hardship that the family will experience in the event that Mr O'Toole is sent to gaol exceptional either, but it remains the case that Mr O'Toole will do his sentence harder than it would otherwise have been, blaming himself and knowing that his actions have caused suffering to his family. 12Mr Barber, on behalf of Mr O'Toole, also relies on the circumstance that Mr O'Toole has had to give up his job as a steward, in fact give up any involvement in the harness racing industry. That of course is not unusual. Many people who commit offences, especially offences of dishonesty, find it difficult to get work and have to change careers. 13A submission was made in written submissions by Mr Barber that concurrent sentences are appropriate. Although I have decided to impose an aggregate sentence, it will be obvious from the indicative sentences I announce, that I do not accept Mr Barber's submission about the concurrency of sentences. These were 34 separate acts of criminality, resulting in nine specific offences which must be the subject of a sentence. No one should consider that having committed one offence, further offences, all 33 of them can be committed for free. Each offence involved further harm to the racing industry and each offence is deserving of further punishment. On the other hand of course, the principle of totality applies. I have decided in imposing an aggregate sentence, to reflect both of those principles, even though they at times point in completely opposite directions. 14I accept that Mr O'Toole is remorseful. Of course a large part of that is appropriately directed to the effect that his crimes have had on his family, but I accept that remorse goes beyond that and that he is sorry for what he has done. 15I should mention other offenders who have been sentenced for their involvement in this scheme. Two of them, trainers, were dealt with in the Local Court. Of course the principle of parity requires that no offender should have a justifiable sense of grievance when he compares his sentence with that imposed on his cooffenders but in applying that principle to those matters dealt with in the Local Court, a problem arises. Very limited information is available about one offender and the other had a significant discount allowed for him because of assistance he gave to the authorities. 16The principle of parity also applies to the sentence that I imposed upon Michael Russo. He was sentenced for similar offences, although because he was a trainer and not a steward, the fact that he himself did not breach any trust, means that objectively for that reason alone, his conduct was less culpable than that of Mr O'Toole. In addition, he was dealt with for fewer offences overall, but I have taken the sentence I imposed upon Mr Russo and those differences into account in determining the sentence that I will impose upon Mr O'Toole. 17Notwithstanding the circumstances in which Mr O'Toole committed these offences, which I have mentioned, and notwithstanding the mental health issues which have arisen because of Mr O'Toole's experience at school, general deterrence remains of prime importance in this sentencing exercise. Clearly, sums of money, perhaps significant, can be made through corrupt activity where betting is involved. Now is not the place for me to express my views as to the link between corrupt conduct and the betting industry but the link between those two activities is clear. If there is to be a betting industry, it is important that it is fair and what Mr O'Toole did was harm those people who placed bets on horses believing that things were fair when, as investigations revealed, they were not. It is hard of course to point to an individual victim of these crimes but there were no doubt many who all lost, I hope, small sums of money because of what Mr O'Toole did. 18Mr O'Toole is not to get any longer sentence in an effort to make an example of him, but general deterrence does remain a very important aspect of the sentence I am about announce on Mr O'Toole. Those, whether they are involved in harness racing, other forms of horse racing, other forms of racing, or other forms of sporting activity, who might be tempted to receive or offer bribes should bear in mind the likely result if they are caught. 19It was accepted implicitly in the submissions of Mr Barber that a sentence of imprisonment was required, although he suggested that a suspended sentence or an ICO would be appropriate. I accept Mr Barber's concession that imprisonment is required. The next question becomes how long, and only if the length of sentence is such that alternatives to fulltime imprisonment are possible does the next question arise. I have determined a length of sentence such that no alternative to fulltime imprisonment is possible. 20The aggregate sentence I impose upon Mr O'Toole is to consist of an 18 months non-parole period and a head sentence of three years. I would have imposed a sentence of two years on the first matter taking into account the Form 1 matters and 18 months on the remaining eight matters. The earliest date on which Mr O'Toole is to be released to parole is 20 December 2014 and I order his release to parole on that day. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2013